Bullying in the workplace

What is harassment?

“Harassment” is the exhibiting of unwanted conduct related to a protected characteristic which has the purpose or effect of  violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.

A claim for harassment will normally be against the individual that harassed you and your employer (should your employer not have taken reasonably practicable steps to prevent the harassment occurring).

What about the “banter” excuse?

If you have been harassed under the Equality Act 2010 your employer will generally find it difficult to argue that the conduct that you have experienced should not be harassment because it was just workplace “banter” – Employment Tribunals are experienced with these kinds of arguments by employers and generally do not look favourably on them.

What if I’m told that the bullying was just ‘constructive criticism’?

Whether this argument would succeed would depend to a very great extent upon the manner in which the constructive criticism was conveyed and whether it reasonably would have had the effect of offending you. You need to look at each particular case to determine whether it was reasonable for the constructive criticism to offend you or whether, instead, it would amount to bullying at work.

Examples of bullying in the workplace

• Spreading malicious rumours about you or someone else, or insulting someone in word or in behaviour;
• Exclusion or victimisation;
• Unfair treatment;
• Ovebearing supervision or other misuse of power or position;
• Unwelcome sexual harassment, sexual advances, including touching, displaying sexual materials, asking for sexual favours etc.;
• Making threats or comments about job security without foundation;
• Homophobic comments or demeaning comments about your sexual orientation;
• Overloading you with work or constantly criticising you;
• Preventing you from progressing at work by blocking training or promotion opportunities for you;
• Demoting you unfairly

How do I deal with bullying in the workplace?

If you believe that you have been bullied or harassed in the workplace then you have a number of options open to you that you may wish to pursue:

1. Talk to those who you believe are bullying and harassing you
2. Informal grievance
3. Formal grievance
4. Consider making or threatening a claim against your employer or your colleagues
5. Contact ACAS
6. Talk to an employment law expert

Talk to those who you believe are subjecting you to bullying in the workplace

If possible and appropriate, you should first try and talk to those who you believe are bullying you in the workplace – addressing the issue directly may resolve the whole problem.

Informal grievance

If you don’t feel able to talk to those bullying you or, alternatively, you don’t think it’s appropriate to talk to them, you should submit an informal grievance to either your line manager or someone else in a position of authority. This grievance should preferably be in writing and should address why you are complaining and provide sufficient facts to allow for someone to deal with the grievance. If you don’t feel that it is appropriate to give your informal grievance to your line manager (for example, if you believe that it is your line manager bullying you) then you may wish to submit the informal grievance to someone else in a position of authority.

Formal grievance

If you are unwilling or unable to make an informal grievance, or your informal grievance isn’t resolved to your satisfaction, then you can make a formal grievance to your employer. This grievance should preferably be in writing and should address why you are complaining and provide sufficient facts to allow for someone to deal with the grievance. If you don’t feel that it is appropriate to give your formal grievance to your line manager (for example, if you believe that it is your line manager bullying you) then you may wish to submit the formal grievance to someone else in a position of authority.

If you don’t think that your employer has reached a fair decision relating to your grievance or there has been some form of procedural defect in handling the grievance then you should be informed that you can appeal against the grievance outcome (as well as to whom the grievance outcome should be submitted and the time frame in which you should submit the grievance).

Consider making or threatening a claim against your employer or your colleagues

If you are unable to resolve your bullying and harassment complaint at the grievance stage then you may wish to make or threaten to make a claim against your employer. The nature of the potential claims that you can make is dealt with below at Legal remedies against bullying and harassment in the workplace. It is strongly recommended that you obtain independent legal advice on your bullying and harassment claim before making or threatening a claim in the civil courts or tribunal.

Contact ACAS

ACAS act as “conciliators” in employment disputes – they do not and cannot give legal advice but act as an information conduit between you and your employer. If you wish to try and negotiate some form of agreement with your employer then you may wish to contact ACAS and see if your dispute can be resolved through conciliation.

If you are thinking of bringing a claim in the Employment Tribunal then you must first obtain an ACAS Early Conciliation certificate. You can obtain this certificate by submitting the details of your case to ACAS and going through the ACAS Early Conciliation process. A failure to obtain your certificate will generally mean that you are prevented from making an Employment Tribunal claim, unless exceptional circumstances apply.

Talk to an employment law expert

If you are thinking of making or threatening a claim against your employer, or simply want advice on your employment dispute and the best way to handle it, then you should contact a specialist employment lawyer.

What claims can I bring if I’m being bullied at work?

Employers are responsible for preventing bullying and harassing behaviour. If you are being bullied or harassed in the workplace then you may have the following legal claims:

1. A claim under the Protection from Harassment Act 1997
2. A claim for harassment under the Equality Act 2010
3. A claim for constructive dismissal under the Employment Rights Act 1996
4. A claim for failing to protect your health and safety under the Health and Safety at Work etc Act 1974
5. A claim for negligence under the common law

The Protection from Harassment Act 1997

Although the Protection from Harassment Act 1997 was originally intended to allow the victims of stalking to sue their harassers, the well-known case of Majrowski v Guy’s and St Thomas’ NHS Trust extended protection under the Act to employees suffering from bullying and harassment in the workplace. Under the Act a person must not pursue a course of conduct which he or she knows or a reasonable person would know amounts to harassment of another person. In order to succeed with a claim under the Protection from Harassment Act 1997, a claimant must show:

• Conduct which occurred on at least two occasions;
• Which targeted the claimant;
• Was calculated in an objective sense to cause distress; and
• Which is objectively judged to be oppressive and unreasonable

A claim under the Protection from Harassment Act 1997 must be made in the civil courts, not the Employment Tribunal.

The benefits of making a claim under the Protection from Harassment Act 1997, rather than a claim in the Employment Tribunal (such as a claim for constructive dismissal or harassment) are as follows:

• The limitation period for the claim is much longer at six years, rather than the three months for a claim in the Employment Tribunal;
• Compensation for anxiety and financial loss is recoverable without you having to prove that they have suffered an identifiable personal injury;
• The harassment can be on any grounds so the protection is all-encompassing (this is not the case with, for example, a claim for harassment under the Equality Act 2010 where the claimant will have to show that the conduct towards them was because of a protected characteristic that they or someone else possesses, such as race or age); and
• Your costs are recoverable if you succeed with a claim in the civil courts – in the Employment Tribunal costs are generally not recoverable from the losing side

Please note, however, that one of the risks of making a claim in the civil courts (unless it is in the small claims court) is that if you lose then you will generally be responsible for the costs of the other party.

Harassment under the Equality Act 2010

You may also make a claim under the Equality Act 2010 if you think that you have been bullied or harassed because of a protected characteristic that you or someone related to you possess (i.e. your age, race, gender, disability, sexual orientation, gender orientation, marriage or civil partnership status and/or religious or philosophical belief). In order to succeed with a claim for unlawful harassment under s.26 of the Equality Act 2010 you must show:

1. That you have been subjected to unwanted conduct
2. That this unwanted conduct related to a protected characteristic that you or someone else possesses
3. That this unwanted conduct had the purpose or effect of violating your dignity or , humiliating you, degrading you, creating an offensive work environment for you

A claim under s.26 of the Equality Act 2010 must be made in the Employment Tribunal and must be made within three months less one day of the date that the harassment occurred (or that you became aware of it).

More information on s.26 of the Equality Act 2010 can be found on this page: Harassment at work – a brief guide

A claim for negligence under the common law

If you have suffered some form of personal injury (a mental or a physical injury) because of bullying or harassment that you have been subjected to in the workplace then you may be able to make a claim for the tort of negligence against your colleagues or against your employer.

A claim for constructive dismissal

If your employer has failed to deal with bullying and harassment in the workplace properly then it may have breached the term of mutual trust and confidence that is implied into your contract of employment. If this is the case then you may be able to bring a claim for constructive unfair dismissal in the Employment Tribunal.

A claim for constructive dismissal must be made in the Employment Tribunal within three months less one day of the date that your resigned from your employment.

More information on constructive dismissal can be found on the following page: Constructive dismissal

A claim for failing to protect your health and safety

If your employer has failed to take reasonably practicable steps to prevent any bullying and harassment and you have, as a consequence, suffered some form of harm, then you may able to bring a claim against your employer under the Health and Safety at Work etc Act 1974.

A claim under the Health and Safety at Work etc Act 1974 must be made in the civil courts, not the Employment Tribunal.

You should obtain specialist legal advice if you wish to pursue this type of claim against your employer.

Negotiating an exit if you’ve been bullied at work

If you are being bullied or harassed at work then you may wish to try and obtain compensation for the distress and upset that you’ve suffered as a result of the offending conduct. This is a sensible option for both you and your employer – however, you will need

One option open to you is to look to negotiate a settlement package with your employer (via a settlement agreement) – this could be conditional upon you leaving your employment with the employer, but it may not. What the appropriate settlement terms will be in each instance will depend upon the circumstances of your particular matter.

If you have ground grounds to bring a claim for bullying and/or harassment then a successful exit negotiation would normally result in you receiving a sum of compensation – as above, this may or may not result in the termination of your employment and will be a subject of negotiation. It is common for a settlement package to be offered by an employer if you have filed a grievance for a number of reasons, not least the fact that once you have formally filed a grievance with your employer there is a strong chance that the relationship with your employer has broken, or will break, down; this is regardless of the outcome of the grievance process.

Negotiating a settlement package in these circumstances is a highly strategic situation and one that normally requires a delicate tactical touch – the success of the exit package negotiations will depend upon how you approach the negotiations and the potential strength of your claim. We therefore recommend that you seek legal advice on the strength of your claim, the potential value of your settlement package, and on the approach that you should take to the negotiations; equally, seeking legal advice will allow you to avoid missteps in the negotiations which could weaken your settlement negotiations.

We have advised thousands of clients on settlement negotiations where they have had no choice but to seek compensation as a result of bullying and harassing conduct, and we have a strong track record with producing positive results.

How long do I have to bring a claim for harassment in the Employment Tribunal?

If you wish to bring a claim for harassment (under the Equality Act 2010) then you should normally issue an Employment Tribunal claim within three months less one day from the date that you suffered the incident of harassment. However, if there are a number of acts of harassment that span over a period of time then you may be able to argue that the harassment was part of a ‘continuing act’, and that the last incident is therefore the relevant incident for determining the ‘limitation date’ for the claim (i.e. the last day that the claim can be brought) – this kind of argument will allow you to ‘revive’ claims that would otherwise potentially be outside of the limitation date (sometimes substantially outside of the limitation date.

The ACAS Early Conciliation process

Before you bring a claim in the Employment Tribunal you will normally need to go through the ‘ACAS Early Conciliation process’ and obtain an ACAS Early Conciliation certificate. Please click here for a link to the ACAS website.

The deadline for submitting your claim in the Employment Tribunal will normally be extended by the period of time that you were in the ACAS Early Conciliation process for (this can be a complicated calculation, however, and we recommend that you seek legal advice on this).

If you do not obtain an ACAS Early Conciliation before issuing your claim in the Employment Tribunal then the Employment Tribunal will normally not accept your claim. This step is therefore very important.

Are there any steps I need to take before submitting a claim for harassment to the Employment Tribunal?

As detailed above, it is normally recommended that you do the following before issuing a claim for harassment in the Employment Tribunal:

1. File a formal written grievance complaining about the behaviour that you have been subjected to;
2. Try and negotiate a settlement package;
3. Go through the ACAS Early Conciliation process and obtain an ACAS Early Conciliation certificate

How do I submit a claim for harassment to the Employment Tribunal?

There are a number of options available for filing your claim for harassment with the Employment Tribunal, as follows:

1. Issuing your claim form online (using this Government website);
2. By posting the ET1 claim form to the Employment Tribunal; or
3. By hand-delivering the ET1 claim form to the Employment Tribunal

You cannot issue an Employment Tribunal claim via fax or email. The most common method is online submission of the ET1.

Our analysis of claims in the Employment Tribunal for harassment and bullying

• Employee wins Employment Tribunal claim for harassment after being called a “black c***” (Mr L Mendez v Plasflow Limited ET1804070/2019) – in this case an Employment Tribunal held that a Black employee had been harassed when he was called a “black c***” and that the failure to deal with this incident properly amounted to direct race discrimination (read our analysis here)
• Employment Tribunal awards employee almost £7,000 after manager’s offensive comments about Muslims (Aboulossoud v Royal Borough of Greenwich & anor ET/2302909/2016) – in this case an employee was awarded almost £7,000 by the Employment Tribunal after it found that one of her managers had made offensive comments about Muslims (read our analysis here)
• Employee wins sexual harassment case after rejecting colleague’s advances at work (Ms S Simalyte v Kentucky Fried Chicken Ltd – ET/1601209/2017) – in this case the Employment Tribunal held that a female employee had been sexually harassed by a colleague after she rejected a colleague’s advances at work (read our analysis here)

Workplace bullying cases in the newspapers

• Bullied City worker wins £800,000 – BBC
• When a boss turns into a bully – The Guardian
• Met discriminated against black female police officer, tribunal finds – The Guardian

What compensation can I win in an Employment Tribunal claim for bullying in the workplace?

Depending on what type of claim you make and the circumstances of your claim, you may be able to claim the following types of damages if you are successful in any of your claims:

• Loss of earnings
• Injury to feelings (if you make a claim under the PHA 1997 or the Equality Act 2010)
• Personal injury
• General damages (if you make a claim for negligence or under the HSAW etc 1974)

What compensation will be appropriate in your case will generally depend on three main things:

1. What loss of earnings you have sustained as a result of the harassment (for example, if you have resigned as a result of the harassment);
2. What injury to feelings you have suffered as a result of the harassment (this is judged based upon the ‘Vento band’ of damages);
3. Whether you have suffered a mental injury as a result of your employer’s conduct (if so, you may also be able to sue for personal injury if you are bringing a claim for harassment under the Equality Act 2010)